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Friday, March 23, 2012

Competency restoration: Clinical vs. forensic assessments

One often hears folks in the system say that, though it's lamentable to use jails as a substitute for mental health treatment, at least sick people get services there. Seldom discussed, though, is that the process begins with a concerted effort to prove that mentally ill defendants are not, in fact, sick so they can be shown competent to stand trial. A presentation this morning at the Texas Criminal Justice Integrity Unit's mental health seminar by Dr. Bryan Scott - who assesses defendants' competency for Bexar County - identified some of the key distinctions between his forensic role and that of a clinical diagnostician, both in his discussion and his own demeanor and attitude toward the work.

Scott emphasized the radical differences between the role of a forensic mental health examiner vs. clinical psychologist psychiatrist. In a clinical assessment, he would typically run down a checklist of symptoms: Do you hear voices, etc.? In a forensic setting, he said, he doesn't interrogate symptoms, assuming malingerers would cop to all of them. but instead lets defendants bring symptoms to him. And when they do, he views them very skeptically, with his main task - and to hear him tell it the most "fun" part of the job - that of rooting out alleged malingerers (I say "alleged" because in one prominent example he insisted a man was faking though a jury had overruled him).

For example, instead of listing possible real symptoms, Scott will often suggest phony symptoms (e.g., are symptoms worse when you lie down, stand up, urinate, etc.?) to trip them up if they agree with items not associated with the possible illness. Or he'd ask a series of 50/50 questions ("Does a cow have three legs or four? Is a quarter worth 25 cents or a dollar.? Many mentally ill people, he pointed out, will answer those questions just fine. If they get most wrong, not 50/50 as you might if guessing, he assumes they're likely malingering. So that line of questioning is aimed at tripping up malingerers and merely wasting the time of the actually sick, and is not something you'd see in a clinical assessment.

In some cases, things that might cause a clinical diagnostician to think a mental illness more likely, said Dr. Scott, may mitigate against him believing a defendant. For example, mental illness (particularly bipolar and schizophrenia) are to some extent inheritable, so a family history normally implies it's more likely a patient will have the same problem. In the case of defendants, though, Scott said if their mother suffered from schizophrenia, a malingerer might have more intimate knowledge of symptoms and be able to mimic them. For this reason, he considers family history both "a rule-in and a rule-out" criteria.

Another key difference, said Scott: Forensic examiners determining competency do not have a doctor-patient relationship, though he does tell defendants "I'm here to help you." But his role is "not therapeutic," said Scott, who said it's a "totally different role than seeing a patient." He's not there to get them treatment. There is "no confidentiality," and he lets them know that up front. Indeed, he said, often defense attorneys will sit in on the interviews. That alone is a huge difference between the mental health treatment in jail and out: Is the client the client, or is the court the client?

Dr. Scott's gleeful tone as he recounted "tricks of the trade" for identifying (or at least accusing) malingerers was difficult to suppress, and mostly he didn't really try. I don't say that to criticize him, at least too harshly (though at times it did seem a bit much). Malingering happens and somebody has to try to root it out. I certainly don't envy the task. Problem is, everybody including the legitimately ill, who are processed through the system in large numbers, get treated as potential malingerers on the front end, where possible diagnoses aren't probed so much to identify problems as to find excuses to ignore them. What a strange, almost perverse aspect of the system.

7 comments:

Malingering is a term that is not used much any more because it is so emotionally charged as well as inaccurate. "Symptom magnification" or "No objective evidence of illness" are more common and probably more correct.

I don't think it's really fair to say that any of us who evaluate offenders have the idea of malingering "front loaded" into our evaluations. It really isn't necessary. Medicine is at least a quasi-scientific discipline, and there are pretty standard physical and mental tests which have a good record of "reproducible results"; it is reasonably easy for an experienced practitioner to separate the wheat from the chaff without too much trouble.

IMHO the best forensic evaluations are done when the offender is hospitalized at a state or federal medical facility for evaluation. This way the patient can be evaluated "longitudinally" (over a period of days) rather than by a single visit or two to the jail facility.

You also ask "who is the client, the patient or the court?" Well, if it is a court-ordered competency evaluation, the client is the court because the examiner has been charged with giving an opinion on competence, rather than charged with delivering treatment.

Perhaps Dr. Scott did seem "gleeful", but there are several fields--forensics, disability evaluation, and Workers' Comp--where exaggeration of symptoms and signs is common if not the norm. The successful professional has a right to be "gleeful" if a method of making accurate determinations can be found. Offenders, those seeking disability payments, and injured workers may indeed have legitimate problems--and should be given a fair shake; but guile and downright fraud are common, and all too often welcomed by our colleagues of the bar whose zealous advocacy may make them desirous of any advantage.

Isn't this the same Bexar County shrink who said that a defendant was not suicidal shortly after he had pleaded guilty and asked to be sentenced to death? And why isn't he administering recognized tests for malingering, rather than his own ad hoc tests. Quack? God complex? a bit of both?

I'm sure you didn't mean to suggest in any way your aggreement with the concept that the criminal justice system is anything like an acceptable replacement or help for the dissappearing public mental health care system, but I wanted to make 2 points. The CJS is not designed to deal with health problems; it does it very badly, and it costs an enormous amount compared to using, say, a community based health model. Two, most mentally ill people caught up in the CJS are charged with "nuisance type" offenses, like repeated offenses of disturbing the peace, panhandling in a pressing and persistent way, possession of small amounts of street drugs or prescription drugs without prescriptions, etc.The idea is common that insane people are often dangerous and violent, but this is unusual, even with extremely sick people, though working people up through fear and anger as some police or prison situations do can increase the number.

A friend of mine is much happier now that he's doing final evaluations for long-term disability pension payments for Workers Compensation. Being the last in line to decide the degree of disability, and whether the disability was caused on the jobsite, he may not have written or said the word "malingering", but he sure had to consider the possibility, when it came to a lifetime pension for a 24 year-old. So I see the task before this psychiatrist, but I don't think working within this system is helping patients or Texas.

Prison Doc's swipe at the bar is a cheap one - as a lawyer with a longstanding interest in competency cases, I have seen far more mentally ill defendants deemed competent both by jail house shrinks and the court, who were in fact incompetent, than I have malingerers. And I have never seen a judicial opinion suggesting that counsel in a criminal case had tried to fabricate a mental health defense. A far more common problem than faking mental illness is the "malingering of wellness" by inmates who fear the stigma of the mental illness/retardation label.. I can't speak for the civil bar, where there may in fact be money in getting someone categorized as mentally ill - in the criminal system the financial considerations tend to go the other way.

SWTMC (Southwestern Texas Medical Center/Dallas did the autopsy on my son, Joshua. The ME had no evidence from the scene, as there was none. He initially ruled Undetermined until receiving a report from former Det. Martin, assuming that Josh was a drug user, stated that Josh had hung himself. However, there were no drugs in his system, and it was not a suicide. McGregor PD killed him. www.americaiswatching.org (Joshua Robinson)

The threshold for competency is quite low and if attorneys disagree, they are free to ask for a second opinion.

Also, just because someone is malignering does not rule-out also having a mental illness. And if you decide someone is malingering does not automatically mean they are competent. In other words, in some really hard cases, you can have a defendant that is mentally ill, malingering, and incompetent. To think the malingering means competent is a naive view.

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